People v. Plasencia

• Decision Date: 16 March 1983
• Docket Number: Cr. 39995
• Citation: 140 Cal.App.3d 853,189 Cal.Rptr. 804
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick Robert PLASENCIA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 804

189 Cal.Rptr. 804

140 Cal.App.3d 853

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick Robert PLASENCIA, Defendant and Appellant.

Cr. 39995.

Court of Appeal, Second District, Division 2, California.

March 16, 1983.

Rehearing Denied April 7, 1983.

Mary J. Madsen, Ventura, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab, Jane M. Began, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Acting Presiding Justice.

After trial by jury on a six count information, defendant Nick Plasencia, Jr. was found guilty of robbery (Pen.Code, § 211), attempted robbery (Pen.Code, §§ 664/211), and assault with a deadly weapon (Pen.Code, § 245(a)). In an act of leniency, execution of sentence was suspended and defendant was placed on five years formal probation upon certain terms and conditions, among them that he spend six days in county jail. Defendant appeals from the order granting probation. We affirm.

The convictions stem from the unprovoked attack on four off-duty and unarmed security guards by a marauding group known as the Diamond Street Gang. We note here that the sufficiency of the evidence is not in dispute.

At about 11:00 p.m., on the night of November 1, 1979, Alfred Blechman and a friend, Carlos Luna, had just finished work at the Bank of America's data processing center in downtown Los Angeles and were proceeding to a bus stop at the corner of Temple and Beaudry. Already waiting for them at that location was a mutual friend, Magidy Salib. As the three talked and waited, they were joined by yet another co-worker, Larry Jacques, when he pulled up to the curb in his car. More conversation ensued.

Without notice or warning a group of approximately eight persons ran from across the street, surrounded the four men in a loose circle, and demanded their money. The gang, rapidly growing in size to well over twenty persons, became increasingly hostile. Using a knife, one in the group slashed two of the tires on Jacques' car. Others circled around Luna and made a demand at knifepoint for his money. Repeating that he had no cash, Luna stepped backwards and threw an athletic bag he was carrying onto the ground. In the scurry that followed, he turned and ran in the direction of the bank building. Although several in the gang took up pursuit, Luna was able to avoid capture.

Blechman reached the safety of Jacques' car and the two men drove to the bank to summon help. Salib, left to fend for himself, was beaten, kicked, and eventually stabbed by the mob. Upon seeing their remaining victims scatter, the gang began to disperse. With help on the way, both Jacques and Luna briefly returned to the scene, spotted one of their attackers and chased him to a nearby market. After recognizing several others involved in the assault, the men returned to the bank. Luna later recovered his athletic bag, but found that the keys to his home and some clothes were missing.

During a subsequent investigation by the Los Angeles Police Department, defendant was identified by several of the victims as a participant in the attack. In Mirandized statements and confessions obtained from fellow gang members Mario Monforte and Manuel Chavez, defendant was further implicated in both the assault and robbery.

At trial the defense was alibi. During a hearing outside the presence of the jury, defendant sought to introduce the purported expert testimony of Dr. Robert Shomer, a psychologist, concerning the inaccuracy of eyewitness identification. As part of its offer of proof, the defense submitted a 27 page document summarizing the nature of Dr. Shomer's research and delineating the ways in which it is possible for witnesses to be subjectively positive in their identification and yet be in error. The trial court also heard extensive testimony as to the doctor's qualifications. Although the court expressed its familiarity with Dr. Shomer's work, it concluded that evidence of the type proffered by the defense had not yet reached a state of acceptability in the legal community and therefore could not be used at trial.

In rejecting the proffered evidence, the court made it clear that while Dr. Shomer was a highly qualified and respected psychologist, the subject matter about which he sought to testify was too conjectural and too speculative to support any opinion he would offer. ¹

Based upon the foregoing we find no abuse of discretion in prohibiting defendant's expert from testifying before the jury.

In Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, 183 Cal.Rptr. 615, we examined some of the general legal principles codified in California's Evidence Code relating to the admission of expert testimony. We noted there that "the rules of evidence are essentially rules of exclusion rather than admissibility. All relevant evidence is admissible unless there is a positive rule of evidence which excludes it. [Citation.] ... A trial court has discretion after a weighing process to exclude as 'immaterial' otherwise relevant evidence which is deemed to be inordinately time consuming or prejudicial when compared to its probative value (Evid.Code, § 352). Further, the Evidence Code contains specific exclusion for evidence which, for policy reasons or for lack of reliability, are considered 'incompetent' to prove any particular issue ...." (Id. at p. 30, 183 Cal.Rptr. 615.)

Evidence Code section 801 contains two fundamental limitations on the use of opinion testimony by an expert witness. That section provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."

It has long been held that conjectural and speculative matters may not "be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (Evid.Code, § 801, subd. (b).) The reason for such a rule is clear. Speculative opinions are inherently unreliable and have little, if any, tendency in reason to prove a disputed fact in issue. (Evid.Code, § 210; People v. De La Plane (1979) 88 Cal.App.3d 223, 242-243, 151 Cal.Rptr. 843.) Because of the esoteric nature of most expert testimony, appellate courts have traditionally given wide latitude to trial courts in determining whether the matters relied upon in the formulation of opinions are too conjectural to be probative. (Cf. People v. Clark (1980) 109 Cal.App.3d 88, 167 Cal.Rptr. 51; Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 164 Cal.Rptr. 343; People v. Guthreau (1980) 102 Cal.App.3d 436, 162 Cal.Rptr. 376.)

Defendant's attempt to introduce expert testimony to prove the inaccuracy of eyewitness identification is nothing new. For the most part, however, the appellate courts of this state have upheld the exclusion of such testimony on the grounds of unreliability and relevancy. (See People v. Brooks (1975) 51 Cal.App.3d 602, 605, 608-609, 124 Cal.Rptr. 492; People v. Bradley (1981) 115 Cal.App.3d 744, 751, 171 Cal.Rptr. 487; People v. Guzman (1975) 47 Cal.App.3d 380, 385, 121 Cal.Rptr. 69; People v. Johnson (1974) 38 Cal.App.3d 1, 7, 112 Cal.Rptr. 834.)

Since our society has not reached the point where all human conduct is videotaped for later replay, resolution of disputes in our court system depends almost entirely on the testimony of witnesses who recount their observations of a myriad of events.

These events include matters in both the criminal and civil areas of the law. The accuracy of a witness' testimony of course depends on factors which are as variable and complex as human nature itself.

The law has recognized the possibility of inadvertent as well as intentional error in a witness' testimony and in some cases, where it was felt necessary, protective rules have been adopted. For example, the possibility that the spoken word may be misinterpreted or misremembered prompted the enactment of Penal Code sections 1103a and 1110 requiring the testimony of two witnesses or one witness and corroborating circumstances to support a conviction of perjury or theft by false pretenses.

Further a jury in a criminal case must be instructed to view with caution the testimony of a witness who purports to recite an oral admission or confession of a defendant. (CALJIC Nos. 2.70 and 2.71.)

The requirement that the testimony of an accomplice be corroborated (Pen.Code, § 1111) exists because of the recognized danger of the possible motivation of an accomplice to testify falsely.

Other such prophylactic rules are numerous. The Legislature, however, has not seen fit to adopt any such rule in regard to eyewitness identification. The cornerstone of our system remains our belief in the wisdom and integrity of the jury system and the ability of twelve jurors to determine the accuracy of witnesses' testimony. That system has served us well. (See In re Miguel L. (1982) 32 Cal.3d 100, 185 Cal.Rptr. 120, 649 P.2d 703.)

Recently we have been told, however, by a small group of so-called "experts" attempting on the basis of "empirical" data to elevate one small area of human behavior into a "science" of its own, to wit, the phenomenon of one individual recognizing another individual--that so-called "eyewitness" testimony should no longer be relied upon.

Reduced to...